Thursday, March 29, 2012

Equality before Law is fundamental in any democracy.

Have your day in court, President Zuma

FLOYD
SHIVAMBU

In December the ANC will have its 53rd national
conference in Mangaung. Almost all the media are speculating about what the
real issues of focus will be -- and those relating to leadership elections seem
to be elevated above all other issues. There is, however, an elephant in the
room.

No one is paying significant attention to it, either because they are oblivious
or because they fear those with state power will suppress and isolate them if
they speak about this issue. At the risk of being isolated and purged, I want
to address the elephant in the room -- which is the reality that President
Jacob Zuma is accused of corruption and has yet to have these allegations
tested in court.

It is a matter of fact that the state, of which President Zuma is head, has a
prima facie case to which he should answer in a court of law. In 2009 the
charges against him were withdrawn on the basis of the gossiping and backchat
of some senior National Prosecution Authority (NPA) officials about whether
President Zuma should be arrested before or after the 52nd ANC national
conference in Polokwane in 2007.

These officials are not said to have concocted charges against President Zuma.
They are said to have discussed when he should be arrested and brought before a
court to respond to allegations that he illegally exchanged monies with a shady
individual, Schabir Shaik, who was described by the prosecution as ­having a
"generally corrupt relationship" with President Zuma. The high
court's judgment was that Shaik was guilty.

The Supreme Court of Appeal has been deciding whether a high court review of
the decision to drop charges could proceed. Whatever else can be said, the
reality is that the then acting national director of public prosecutions,
advocate Mokotedi Mpshe, shelved principle for political convenience in 2009 as
a result of political dynamics in the country.
The ANC, its leagues and the alliance were unanimous that Jacob Zuma should
become president of South Africa and a majority in society accepted that. For
the sake of political convenience, which seemed to be a principled intervention
at the time, advocate Mpshe decided to withdraw the charges -- not on the basis
that President Zuma did not commit the crimes, but on the basis that those
prosecuting him were gossiping about when to arrest him. It was the result of
public pressure from members and supporters of the ANC, including the
commitment to "die and take up arms to kill for Zuma" of ANC Youth
League president Julius Malema.

Now the people who were gossiping about when and how to bring President Zuma to
account are no longer in the NPA. Yet the fact that the state has a case
against him remains.

Equality before the law

The ANC fought for political freedom on the
non-negotiable principle that all should be equal before the law. This found
expression in the Freedom Charter: "There shall be equal status in the
bodies of the state, in the courts and in the schools for all national groups
and races."

The principle was reinforced in the Constitution of a democratic South Africa.
Those who drafted the Constitution deliberately avoided "presidential
immunity" because they had learned how that could make leaders refuse to
step down from office and opt for "aloota continua", protected
from prosecution.

As a test of our constitutional democracy, we should allow a court of law to
determine whether President Zuma violated the law or not. He should voluntarily
answer to the allegations. To protect the integrity of our democracy, the ANC
leadership should be exemplary in all matters relating to the Constitution.

If the ANC and its leadership undermine the Constitution for political
convenience, South Africa's democracy is under serious threat. South Africa
could degenerate into a banana republic in which state machinery is used to
settle political scores and shift the balance of forces.

If the truth be told, any president facing the possibility of being arrested is
dangerous to himself and the nation. Naturally, hoping to avoid arrest, such a
president will surround himself with cronies and blind loyalists in key state
security institutions. Such a president could even try to change the
Constitution and the law to protect himself from prosecution, or find a way of
undermining court decisions through political power.

Now, the appeal court has passed judgment against President Zuma, saying that a
high court review of the 2009 decision can proceed.

Courts shouldn't resolve political squabbles

No one in their true political senses would ever
agree with the Democratic Alliance's use of the courts to determine political
battles and processes. The ANC Youth League rejected this view on various
occasions and we remain firm on it. The DA is not representative of the people
of South Africa and does not deserve an iota of respect from anyone.

The illusion that those in the ANC-led national liberation movement who defend
the equality clause of the Constitution are "liberal democrats"
should be dismissed with contempt. Some of us have, with no support from the
leadership, been proponents of amending section 25 of the Constitution to
realise real and genuine equality.

Since the beginning of allegations of corruption, fraud and money laundering
against President Zuma, most of us have been solid and vocal in defending him against
conspiracies to prevent him from becoming president of South Africa.

Our view, which we expressed openly, was that those who had control of the
criminal justice system, or who acted on the pretext of protecting
then-president Thabo Mbeki, used state institutions to prevent Jacob Zuma from
assuming the highest political office in the land.

We stood firm against the abuse of state institutions for narrow political
purposes. We never said or insinuated that we supported corrupt practices. We
opposed, and continue to oppose, the abuse of state institutions for political
purposes and we are firmly opposed to all crimes, particularly those such as
corruption, which deprive the poor masses of resources that could liberate them
from poverty and starvation.

The Supreme Court of Appeal's judgment says advocate Mpshe's 2009 decision to
drop charges is reviewable. It can be reviewed because, in a democratic South
Africa, all are equal before the law.

No one can believably argue now that state institutions are being used to
prevent Jacob Zuma becoming president -- he is the president of South Africa.

There is a case to answer

In dropping the charges, advocate Mpshe did not
claim there was no case to answer, but said that interference by some NPA and
Scorpions officials suggested there were also ulterior motives for charging him
-- it was not just a matter of justice.

The conspiracies that led to this situation no longer exist. Those who had
ulterior motives are no longer in the NPA or the Scorpions. Yet the state still
has a prima facie case of corruption, money laundering and fraud that President
Zuma must answer.

The interference that happened then did not remove the possibility that he
could have been involved in a corrupt relationship with those who have already
been convicted in court.

If there is dissatisfaction with the involvement of some NPA prosecutors, the
president's legal representatives have the right to raise this matter in court.

If it is true to its values and principles, the ANC should call on President
Zuma not to appeal the judgment of the appeal court, but to allow all due
processes to continue uninterrupted. In fact, President Zuma should welcome the
possibility of going to court, because that is the only way he will clear the
dark cloud over his head.

It cannot be right that, for so many years, the ANC and South Africa as a whole
have not been able to get to the bottom of these allegations. In allowing the
law's processes to happen uninterrupted, President Zuma will retain his innocence
until proven otherwise and will be treated like all innocent people.

Kgalema sets an example

Deputy President Kgalema Motlanthe recently
approached the public protector to investigate him over allegations of
wrongdoing on his part. President Zuma should follow this noble example.

He should avoid the temptation to try to stop the courts listening to his case
by causing unnecessary delays. Further delays will bring doubt, even in the
ranks of the ANC, that there is perhaps a possibility that he did indeed commit
the crimes of which he is accused.

This approach will reaffirm the integrity of the ANC as a movement committed to
the fight against corruption and all criminal acts, which the Polokwane
conference said was a priority.

The criminal justice system will also lose integrity, and will be regarded as
being open to manipulation in the future, if this case is not responded to in a
proper and fair trial. The approach of allowing due process will further
enhance and harness the state's fight against corruption.

The ANC and all its formations and allies should always stand firm on
principles. We will never agree to be drawn into defending possibly corrupt
individuals, because corruption is like a cancer eating away at the moral fibre
of society.

Whether we will be purged or persecuted for expressing this view does not
matter. The truth must be told at all times, without fear or favour. Only
factionalists and proponents of tribalism and corruption can stand opposed to
the accountability of the leadership, and unfortunately I am not one.

Floyd Shivambu is the spokesperson of the ANC Youth League. He writes in his
personal capacity